IDEM INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT

We Protect Hoosiers and Our Environment.

Mitchell E. Daniels Jr. 100 North Senate Avenue

Governor Indianapolis, Indiana 46204

(317) 232-8603

Thomas W: Easterly Toll Free (800) 451-6027

Commissioner www.idem.IN.gov

August 18, 2008

Ms. Louise Gross

Legislation/Clean Air Act

U.S. Environmental Protection Agency

Region V

77 West Jackson Boulevard

Chicago,IL 60604-3950

Re: Supplemental Information

Clean Air Act Section 110(1)

Demonstration and State Implementation

Plan Revisions for Clark and Floyd

Counties, Indiana

Dear Ms. Gross:

The Indiana Department of Environmental Management (IDEM) has performed a legal

review of the applicable statutory procedure for implementation of a vehicle inspection and

maintenance (I1M) program in Clark and/or Floyd counties. This review was conducted at your

request in order to further explain how this procedure works in conjunction with the Clean Air Act

Section 110(1) Demonstration and State Implementation Plan (SIP) Revision, such that I/M would

be a viable contingency measure for the applicable attainment and maintenance SIPs (fine

particles and ozone). Based on this legal review, Indiana statute does in fact permit the State of

Indiana the authority to timely implement a vehicle 11M program whenever necessary as a

contingency measure in conjunction with the federal sanctions process. Enclosed for your review,

please find supplemental information prepared by IDEM's legal staffthat supports Indiana's

interpretation ofits statutory authority to reinstitute 11M whenever necessary as a contingency

measure.

IDEM believes that this supplemental information in conjunction with the Clean Air Act

110(1) demonstration, provides the necessary weight of evidence to demonstrate that IIM is a

viable contingency measure for the applicable attainment and maintenance SIPs. IDEM also

believes that its non-interference demonstration submitted to the U.S. EPA with a request for

parallel processing on October 10, 2006 and a final submission on November 15, 2006 to SUppOlt

the discontinuation ofthe liM program in Clark and Floyd Counties, Indiana remains valid, with

no adverse impacts evident for the area.

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Ms. Louise Gross

Page 2

Theretore, IDEM hereby respectfully requests that the U.S. EPA proceed with final review

and approval ofthe Clean Air Section 110(1) Demonstration for Clark and Floyd Counties. If you

have any questions or need additional information, please contact Scott Deloney, Chiet~ Air

Programs Branch, at (317) 233-5694 or sdeloneyCtV,idem.in.gov 01' Ann Long, Attorney, Office of

Legal Counsel, at (317) 232-8551 or along@idem.in.gov,

DM/sd/ghf

Attachments

cc: Cheryl Newton, U.S. EPA

John Mooney, U.S. EPA

Scott Deloney, IDEM

Chris Pedersen, IDEM

Gale Ferris, IDEM

Ann Long, IDEM
State Form 4336

DEPARTMENT OF ENVIRONMENTAL MANAGEMENT

INDIANAPOLIS

OFFICE MEMORANDUM

The applicable statutory procedure is contained in Indiana Code (IC) 13-17-5-9(d). We

believe that this statute authorizes Indiana to timely implement IJM whenever necessary

as a contingency measure, and provide the following analysis.

IDEM has been asked by EPA to explain how the applicable statutory procedure for

implementation of a vehicle inspection and maintenance (lIM) program for Clark and/or

Floyd counties works in conjunction with the SIP submittal to satisfy the requirements of

40 CFR 51.372(c)(l) through (c)(4), such that liM would be an viable contingency

measure for the attainment maintenance plan.

IC 13-17-5-9(a) and (b) state that after December 31, 2006 the Indiana Air Pollution

Control Board may not adopt a rule that requires the inspection and maintenance ofmotor

vehicles in Clark and Floyd counties. The rule language at 326 Indiana Administrative

Code (IAC) 13-1.1 that required inspection and maintenance ofmotor vehicles in those

two counties was voided by the statute. The I/M program rule was formally amended to

exclude Clark and Floyd counties in 2007.

To:

From:

Through:

Copy:

Subject: .

Date: August 18, 2008

Dan Murray, Assistant Commissioner, OAQ

Ann Long, Attorney, OLC ~V

Robert Keene, Assistant Commissioner, OLC and rill!.

Scott Deloney, Branch Chief, Air Programs, OAQ; Pat Troth, Section

Chief,·OAQ

.CLARKaild FLOYD COUNTIES, INDIANA

CLEAN AIR ACT 11 0(1) DEMONSTRATION; LEGAL AUTHORITY

FOR lIM PROGRAM TO BE RE-IMPLEMENTED AS A

CONTINGENCY MEASURE

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IC 13-17-5-9 (c) and (d) set out the procedure under which the state budget agency may

approve [re-]implementation ofa JJM program in the one or both ofthe counties. JIM in

Clark and/or Floyd counties can only be implemented after the budget agency determines

that implementation of a lIM program is necessary to avoid a loss offederal highway

funding for the state or a political subdivision. The phrase "loss offederal highway

funding" refers to a sanction imposed under 40 CFR 52.31, (a sequence ofnotifications

and ensuing mandatory sanctions for deficiency findings made pursuant to section 179 of

the Clean Air Act), which outlines the consequences to the states for, among other

possible findings ofdeficiency, an EPA finding that any requirement of an approved SIP

revision is not being implemented.

40 CFR 51.372 (c) states that any nonattainment area that EPA determines would

otherwise qualify for redesignation from nonattainment to attainment shall receive full

approval of a SIP submittal ifthe submittal contains the following elements:

(1) Legal authority to implement a basic 11Mprogram as required by this subpart.

The legislative authorityfor a 11Mprogram shall allow the adoption of

implementing regulations without requiringfurther legislation.

IC 13-17-5-9 (d) complies with this element. Subsection (d) is self executing in that

the state budget agency is delegated authority to approve implementation of an I/M

program upon making a determination that certain conditions exist. The budget

agency approval will trigger rulemaking and contractual processes within IDEM for

which the department has long standing statutory authority. No return to the

legislature for additional authority to implement JJM is required or needed.

(2) A request to place the 11Mplan (ifno 11Mprogram is currently in place or ifan

11Mprogram has been terminated) into the contingency measures portion ofthe

maintenanceplan upon redesignation.

As an example ofsuch a request, in 2006 IDEM revised the 8-Hour Redesignation

Petition and Maintenance Plan for Clark and Floyd counties in order to move the lIM

program from Section 6.2 where it was listed as a measure to remain in place over the

course ofthe maintenance plan, to Section 8.0 where it is listed as a contingency

measure. Within the request, IDEM stated that the revision resulted from the

amendment onc 13-17-5 eliminating the lIM program, which amendment is the

subject ofthis letter. That request and Indiana's SIP revision was approved effective

July 9,2007.

IDEM will continue to make this request in the appropriate submittals for Clark and

Floyd counties.

(3) A contingency measure consisting ofa commitment by the Governor or the

Governor's designee to adopt or consider adopting regulations to implement an

11Mprogram to correct a violation ofthe ozone or CO standard or other air

qualityproblem, in accordance with the provisions ofthe maintenanceplan.

The IC 13-17-5-9 (d) procedure allows this commitment to be successfully made in a

SIP submittal. The state budget agency has been statutorily designated to consider

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and approve implementation of a IIM plan for Clark and/or Floyd counties when

needed to avoid a loss offederal highway funding.

A violation ofthe criteria pollutant standard as described in the Commitment for

Contingency Measures within the IDEM submittal is the event that would prompt an

Action Level response, induding consideration of adopting rules/making contracts to

implement lIM. IfIIM is found to be an appropriate and effective measure, IDEM

would notify the budget agency ofthe need to consider and approve implementation

ofllM to avoid losing federal highway funding, and provide the sanction clock

timeline of40 CFR 52.31 as well as the IDEM rulemaking and contractual process

timeline and the commitment made in the submittal (see 18 month deadline

discussion below), to the budget agency. This ensures that the budget agency's

approval is made timely so as' to avoid imposition ofthe highway funding sanction.

(4) A contingency commitment that includes an enforceable schedulefor adoption

. and implementation ofthe JIMprogram, and appropriate milestones. The schedule

shall include the date for submission ofa SJP meeting all ofthe requirements ofthis

subpart. Schedule milestones shall be listed in monthsfrom the date EPA notifies the

state that it is in violation ofthe ozone or CO standard or any earlier date specified

in the state plan. Unless the state, in accordance with the provisions ofthe

maintenance plan, chooses not to implement JIM, it mustsubmit a SJP revision

containing an JIMprogram no more than 18 months after notification by EPA.

IC13-17-5-9 (d) allows compliance with this element through the contingency

commitment. This would be accomplished by a state action timeline, with

milestones, that would proceed from the date ofthe EPA notification to the date of

adoption of a rule to implement lIM.

The eighteen month deadline for the SIP revision dictates that the highway funding

sanction will be avoided. Under 40 CFR 52.31(d), a sanction clock is started by a

(c)(4) finding by EPA. 40 CFR (d) provides that an offset sanction shall apply in an

affected area 18 months from the date w.hen the administrator makes a finding under

(c). The loss offederal highway funding sanction applies 6 months from the date the

offset sanction applies. For findings under (c) (4), the date ofthe finding is the

effective date as defined in the final action triggering the sanction clock. This is a two

year plus process as compared to the 18 month SIP revision process set out in (4).

In summary, the Indiana statute authorizes Indiana to timely implement IIM whenever

necessary as a contingency measure. Understanding this is a matter oflooking at the

specific language ofthe statute and the relevant federal regulations for the steps that

would be taken by IDEM after the decision to implement IIM as a contingency

measure in conjunction with the federal sanctions process.

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